Electric Vehicle Charging Stations: To Charge or Not to Charge?

In recent years, local governments in Washington State have been installing electric vehicle (EV) charging stations at their government facilities.  MRSC recently partnered with Western Washington Clean Cities for an EV Charging Conference, where I gave a presentation on the legal concerns with providing agency employees and members of the public free charging at agency-owned EV charging stations.The presentation covered the following topics:

• Is it a prohibited gift of public funds if the agency allows public employees and members of the public to charge their personal vehicle at an agency charging station without imposing a fee?
• Can employees be provided with free charging as an employee benefit?
• Should an agency require that employees enter into an employee agreement for use of the EV charging stations?

The gift of public funds consideration seems to be the biggest legal concern among government agencies, and there are two ways to analyze the issue.  As a reminder, the gift of public funds prohibition in the Washington State Constitution (article 8, section 7) is mandatory and must be strictly observed. It prohibits a local government from giving “any money, or property, or loan[ing] its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm.”

The threshold question under the gift of public funds analysis is whether providing EV charging for personal vehicles is a “fundamental governmental purpose?”  If yes, no gift of public funds occurs.  If no, then the question turns to whether there is consideration and donative intent.

Can providing EV charging be classified as a fundamental governmental purpose, similar to disposal of solid waste, providing street lights and flood protection? Perhaps so, if one takes a broader view, similar to the State of California, which declared that both state and local governments could provide EV charging without worrying about the gift of public funds issue since, “[e]lectric vehicle charging stations in public parking areas increase the availability and awareness of electric vehicle charging, which serve as an important part of replacing [greenhouse gas]-emitting cars and trucks with clean electric vehicles.”  Similarly, a 2007 Washington State statute, RCW 43.01.250, specifically authorizes state (though not local) agencies to provide free EV charging to state employees and members of the public conducting business with the state, declaring it “to be in the state’s interest and to the benefit of the people of the state to encourage the use of electrical vehicles in order to reduce emissions and provide the public with cleaner air.”

Alternatively, the conservative view is that free EV charging is a gift of public funds because it is provided for the convenience and use of individual EV owners and is not for the common good of all.  It seems to me, however, that an agency can successfully defend against a gift of public funds challenge if it makes free EV charging a benefit available to all employees, similar to free use of an agency-owned gym by agency employees.  If this is the approach chosen by the agency, the agency’s written personnel policy should identify EV charging as an employee benefit. By making this a benefit provided as part of the employee’s compensation package, the agency has a strong argument that there is no gift of public funds since the city is receiving consideration (the employee’s work) and there is no donative intent.  However, under the conservative view, providing free charging to members of the public would be a gift of public funds.

Regardless of whether an agency requires employees pay for EV charging or provides the charging for free, a written agreement with any employee desiring to use a charging station is recommended.  The City of Seattle, which takes the conservative approach and requires payment for an EV charge, developed an employee use agreement that clearly spells out rules of use and payment requirements.  The agreement also states that the city makes no promises with regard to availability or functionality of its EV charging stations, thus protecting itself from an employee claim that they are stranded at work due to a charging station’s failure to charge.

How is your agency approaching EV charging? Your thoughts are welcome in the comment section below.

Photo courtesy Oregon Department of Transportation.